289: Discriminatory dismissals: possibility of interim relief remedy
In today’s blog we look at the decision of Steer v Stormshore Ltd where the EAT considered whether a lack of interim relief for discriminatory dismissals breached the European Convention on Human Rights (ECHR).
The remedy of interim relief is currently available only in very limited circumstances, notably trade union and whistleblowing dismissals. If an employee succeeds in an application for interim relief, the employer will be ordered to continue paying all salary and benefits pending final determination of their unfair dismissal claim, without the right to recover these sums even if the employee is ultimately unsuccessful. Although clearly a valuable remedy, interim relief is rarely sought. As well as being limited in scope, there are onerous procedural hurdles, including the need to apply within seven days of dismissal and to show that the claim is likely to succeed at the full hearing.
Ms Steer brought claims of sex discrimination and victimisation arising from her dismissal by Stormshore Ltd.She also made an unprecedented application for interim relief. The Employment Tribunal rejected her application on the basis that there is no jurisdiction to award interim relief in discrimination claims. However, supported by the Equalities and Human Rights Commission, she appealed to the Employment Appeal Tribunal (EAT).
Ms Steer argued that the absence of an express right to apply for interim relief in the Equality Act 2010 infringed several principles of EU law and amounted to a breach of the ECHR. The EAT rejected the EU law grounds of appeal but agreed that the lack of an interim relief remedy in discrimination cases appeared to be unlawful under the ECHR. Specifically, that it may be a breach of Article 6 (right to a fair trial), Article 8 (right to respect for private life) and Article 14 (prohibition on discrimination). The Government did not respond to an invitation to intervene in the appeal, so the EAT could not consider arguments as to why interim relief is available in whistleblowing claims but not in discrimination claims, and whether this difference in treatment was justified and proportionate.
The EAT does not have the power to grant a declaration of incompatibility with the ECHR. However, Ms Steer was granted permission to appeal to the Court of Appeal, which would have this power. Assuming a declaration of incompatibility is granted, the Equality Act 2010 would then need to be amended. The Government will presumably intervene at the Court of Appeal stage with arguments on justification, but it may be difficult to explain why discrimination claims should be treated differently to whistleblowing claims.
If the Court of Appeal confirms that the lack of interim relief for discriminatory dismissals is a breach of the ECHR then this is a potentially significant decision which could change the way employees approach discrimination claims. For instance, if the law is changed, it will no doubt become routine for employees and their representatives to apply for interim relief after a discriminatory dismissal, much to the detriment of employers. Since an order for interim relief requires the employer to keep the employee on the payroll until the full hearing, there is little incentive to settle, particularly with delays in the Tribunal system which have been exacerbated by the pandemic.